Autumn, 1994] SPORTS VIOLENCE AND THE CRIMINAL LAW 267 SPORTS VIOLENCE, CONSENT AND THE CRIMINAL LAW! It is generally accepted that in the course of sporting endeavour the use of force is pennitted which in other circumstances would be unlawful. Applications of force which would normally be criminal assaults are lawful when inflicted in the course of a game. The traditional explanation has been that the law recognises the consent of the participants as providing a defence. By the same token, it is accepted (with increasing regularity) that there are limits to the amount offorce which might lawfully be inflicted in the course of a game and it is said that participation in sport does not confer a licence to abandon the restraints of civilisation. Thus, there is a point beyond which the consent of the participant is considered immaterial and the conduct is treated as unlawful. The issue has been highlighted by recent well-publicised incidents in both rugby union and soccer.2 A realisation of the serious consequences, in terms of injuries3 and economic 10ss,4 of violent play reinforces public concern. In this essay I propose to examine the issue of criminal liability for violent conduct in the sports arena. In particular, I shall I. This is a revised and expanded version of a paper delivered at the Irish Association of Law Teachers' conference in Dublin, November 1993. My gratitude is due to those who participated in and made valuable contributions to the discussion. The assistance of Eoin McCann, former cricket selector and rugby referee. must also be acknowledged. All errors remain my sole responsibility. 2. In the past few months a number of incidents have been highly publicised. The tour ofthe New Zealand "All Blacks" was accompanied by allegations of violent fouls being committed by them on England players Phillip de Glanville and Kyran Bracken. Some months earlier controversy attended the British and Irish Lions' tour to New Zealand where English player Dean Richards was accused of raking Frank Bunce. whose ear required stitching. In November 1993 John Fashanu. then of Wimbledon FC. was reported to the Football Association for an elbow challenge which seriously injured Tottenham Hotspur player Gary Mabbutt; see The Independent, I December 1993; also The Guardian, "This sporting strife", 15 December 1993. For a summary of similar recent controversies in North America see Nielsen. "Controlling sports violence: too late for carrots - bring on the big stick" (1989) 74 Iowa L Rev 681 at 683-86; also Hechter. "The criminal law and violence in sports" (1979) 19 Crim LQ 425. 3. A recent survey of sports injuries in Ireland attributes 14 per cent of injuries to foul play and "unsportsmanlike" conduct; a further 6 per cent are the result of foul tackles; see Watson. "Incidence and nature of sports injuries in Ireland" (1993) 21 Am] Sports Med 137. An earlier survey of sports injuries in Irish schoolchildren concluded that illegal play was a major cause of injury in schools matches and a call was made for stricter enforcement of the rules by referees and other officials; see Watson. "Sports injuries during one academic year in 6799 Irish school children" (1984) 12Am] Sports Med 65. 4. A number of civil actions between professional soccer players have been initiated in England. Paul Elliott of Chelsea brought an action against Dean Saunders of Aston Villa; see [1992] All ER Rev 365. Drake J dismissed Elliott's claim; see The Guardian, II June 1994. Most recently Peter Beardsley of Newcastle United was reported to be considering action against Neil Ruddock of Liverpool; see The Independent, 26 November 1993. 268 NORTHERN IRELAND LEGAL QUARTERLY [Vol. 45, No.3 focus on the liability of participants for offences against the person. The potential liability of coaches, clubs, officials and sports associations is beyond the scope of the essay, as is the question of liability for public order offences. DEVELOPMENT OF A LEGAL FRAMEWORK The background to the application of the criminal law to sport can be traced to the old writers who acknowledge the lawfulness of certain activities as being "manly diversions".5 This must be read in the context of a concern to declare activities such as duelling, prize-fighting and fencing with naked swords unlawful. Moreover, at the time the organisation and regulation of sport with which we are familiar today was unknown.6 But in practice the intrusion of the criminal law into the sports arena was minimal and little authority existed on the point. By the end of the last century, however, it had become judicially acknowledged in these islands that the criminal law applies to sports conduct. In R v Bradshaw7 the accused during a football game jumped in the air and struck an opponent in the stomach with his knee; the latter died from a rupture of the intestines. Although the case resulted in an acquittal, Bramwell U's direction to the jury that the act would be unlawful if it was intended to cause serious hurt confirmed the applicability of the criminal law to sport. A successful prosecution was brought 20 years later in R v Moore8 where the accused was convicted of manslaughter, when death resulted from a violent tackle during a football game. While those cases involved fatalities resulting from violent play the broader reach of the criminal law implicit in the rulings is confirmed in the celebrated decision in R v Coney. 9 There the' 'sport" of bare-knuckle prize-fighting was held to be unlawful, with the result that those attending thereat were guilty of aiding and abetting. Included amongst the reasons for holding prize fighting unlawful were the potential threat to the public peace which the activity 5. See Foster Crown Law. p 260; per Russell on Crime, 12th ed (London, 1964) p 679: "[tlhus if two, by consent, play at cudgels or single-stick, or wrestling and one happens to hurt the other, it would not amount to a battery, as their intent was lawful and commendable in promoting courage and activity" (footnote omitted). 6. The modern organisation of sport began .in a semi-formal fashion in the English public schools in the I 820s and 1830s. In the latter half of the last century the major sporting associations were founded. The Football Association was founded in 1863, the Rugby Football Union in 1871, the Queensbury rules were drafted in 1865-67. A sense of the earlier robust nature of sports contests is found in Crudden, Macmillan Dictionary ojSport and Games (London, 1980) p 32, who notes a football game in 1793 between six players from Sheffield and six from Norton which lasted three days and ended in a brawl in which serious injuries were inflicted. Gaelic football shares a similarly combative history and during the eighteenth and early nineteenth centuries inter-parish games, often involving hundreds of participants, frequently bordered on faction fighting. The rules of gaelic football were drafted by Daniel and Maurice Davin (in consultation with others) after they had witnessed an especially violent 34-a-side match between two teams from Tipperary and Waterford. The Gaelic Athletic Association was founded sometime thereafter in 1884. 7. (1878) 14 Cox CC 83. 8. (1898) 14 TLR 229. 9. (1882) 8 QBD 534. Autumn, 1994] SPORTS VIOLENCE AND THE CRIMINAL LAW 269 posed, that the blows were struck in anger and that the blows were calculated to cause harm. Prize-fighting was distinguished from other forms of sporting activity which the court indicated are lawful. 10 Thus, Cave J referred to "boxing with gloves in the ordinary way", Stephen J to "sparring with gloves", and Hawkins J to "an amicable spar with gloves". The distinction between that which is lawful and that which is not was summarised by Stephen J: I1 ... the consent ofthe person who sustains the injury is no defence ... if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults .... In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football and the like .... While these remarks must be read in the context of boxing as it was then known they indicate an acceptance by the law of the use of some degree of force in sport. By the same token use of excessive force is unlawful despite the rules of the game or the consent of the participants. Thus, the consent of the fighters which could clearly be inferred from their participation in the prize-fight had no bearing on the question of its lawfulness, as the degree of force clearly exceeded that envisaged by the court as being permissible. This trilogy of cases set the framework for the application of the criminal law to violence in the sports arena. Moreover, the courts expressed the view that the accused would be liable whether the violence was within the rules of the game or not. Coney confirms that the law does not contine itself to fatal violence and that the law sets limits to the capacity of participants to consent to the imposition of violence.